Judicial Selection in the 114th Congress: An Early Assessment

The Senate Republicans’ obstruction of stalled Attorney General Nominee Loretta Lynch, both in the Judiciary Committee and now on the Senate floor, has been closely scrutinized, and appropriately so. But nearly three months into the 114th Congress, the Republican Senate’s failure to fulfill its constitutional duty extends beyond the languishing attorney general nomination to also include judicial appointments.

Rather than working to ensure that our federal courts have enough judges to fairly administer justice, Republicans have adopted a slow-walk approach at each point of the nomination and confirmation process—from working to fill vacancies in their own states, to processing nominees through committee, to holding confirmation votes on the Senate floor. The Wall Street Journal articulated the political goal of this strategy in an editorial, writing that refusing to confirm judges now means that “[i]n 2017 a Republican President would . . . have more judicial openings to fill.”

Now vacancy numbers are once again rising, and the number of “judicial emergencies”—vacancies on courts that lack enough judges to handle their caseloads—has nearly doubled. Moreover, the effects of this obstruction are most severe in states with at least one Republican senator—meaning that, ironically, the Republican strategy to delay and obstruct is most harmful to their own constituents.

As detailed further below:

The Senate has not confirmed a single judge in 2015.

Since January 1, the number of current vacancies has increased by 12, from 43 to 55.

Since January 1, the number of judicial emergencies has increased from 12 to 23.

Five judicial nominees from November 2014 have not had a confirmation hearing.

Half of all pending judicial nominees (8/16) are either African American or Hispanic.

More than half of all pending judicial nominees (9/16) are from states with at least one Republican senator.

32 of 38 vacancies without nominees are in states with at least one Republican senator.

Texas alone has 11 vacancies, and the oldest circuit and district court vacancies are in Wisconsin and North Carolina, respectively.

Finally, in addition to the failure to fill existing vacancies, the nonpartisan Judicial Conference this month recommended that Congress create 82 new federal judgeships (including 9 current temporary judgeships made permanent)—77 new district court judgeships and 5 new judgeships on the Ninth Circuit Court of Appeals. So even if a judge were appointed to every current vacancy, the federal judiciary would still lack the judges required to meet the demands of current caseloads.